JUDGMENT B. K. Narayana J. - Heard Sri Bharatji Agrawal, senior advocate, assisted by Sri S. M. K. Chaudhari and Sri Piyush Agrawal, learned counsel for the applicant and Sri Sanjeev Shankhdhar, learned counsel for the opposite party. The instant commercial tax revision has been filed by the applicant for setting aside/modifying the judgment and order dated January 12, 2009 passed by the Commercial Tax Tribunal, Lucknow in Second Appeal No. 3 of 2009 for the assessment year 2003-04 arising out of penalty proceedings under section 15A(1)(o) of the U.P. Trade Tax Act, hereinafter referred to as, "the Act". With the consent of the parties, the revision is being decided finally at the admission stage itself without calling for any counter-affidavit and without summoning the record. Brief facts of the case as stated in the affidavit accompanying the stay application filed in the revision are that the applicant is a Government of India undertaking and is controlled by Ministry of Petroleum, Government of India. The applicant is carrying on the business of petroleum products throughout India. The applicant does not have any refinery in U.P., and it purchases petroleum product mostly from Mathura refinery and also gets goods by way of stock transfer from its branches situate outside the State of U.P. During the course of assessment proceedings for the assessment year 2003-04 the applicant disclosed its total purchases of petroleum product as well as the goods received from outside the State of U.P. which were duly accounted for in the books of accounts and the documents maintained by the applicant and the Deputy Commissioner (Assessment), Trade Tax, Lucknow, while passing the assessment order accepted the books of accounts as well as the disclosed turnover of the applicant. However, after the assessment order was passed by the assessing authority for the year 2003-04, a notice under section 15A(1)(o) of the Act was issued by the assessing authority for the alleged violation of section 28A alleging therein that the applicant had furnished only one form XXXI for every month for the goods received by the applicant by rail instead of submitting separate form XXXI for each consignment of goods received by the applicant. Upon receiving the show-cause notice, the applicant submitted its reply to the show-cause notice stating therein that the applicant has got its own railway siding and the entire goods received by rail wagon through rail are received at the railway siding of the applicant itself and the applicant had been regularly submitting one form XXXI for each month in respect of goods received by it by rail and the entire rail comes within the premises of the applicant at the own railway siding of the applicant - company and the goods are not transported from any railway station as contemplated under section 28A(3)(b) of the Act. The assessing authority without properly appreciating the reply submitted by the applicant to the show-cause notice passed an order on March 28, 2008 imposing penalty of Rs. 242.13 crore upon the applicant for the assessment year 2003-04 although the assessing authority in its order dated March 28, 2008 accepted that the applicant filed 12 forms XXXI in respect of the monthly railway receipts through railway rake and the assessing authority did not record any finding that there was any intention on the part of the applicant to evade payment of tax. Being aggrieved from the order of the assessing authority, the applicant preferred a first appeal before the Joint Commissioner (Appeals) III, Trade Tax, Lucknow along with an application for staying recovery of the entire amount of the penalty as imposed by the assessing authority on the applicant during pendency of the first appeal. The Joint Commissioner (Appeals) stayed realization of only 50 per cent of the disputed demand. Against the aforesaid order of the Joint Commissioner (Appeals), the applicant filed a second appeal before the Commercial Tax Tribunal, which by an order dated July 22, 2008 allowed the applicant's appeal and stayed recovery proceedings for realization of penalty till the decision of the first appeal by the Joint Commissioner (Appeals). Subsequently, the first appeal filed by the applicant against the penalty order dated March 28, 2008 was allowed by the Joint Commissioner (Appeals) by order dated July 26, 2008 by which the penalty order was set aside and the case was remanded back to the assessing authority. Subsequently, the first appeal filed by the applicant against the penalty order dated March 28, 2008 was allowed by the Joint Commissioner (Appeals) by order dated July 26, 2008 by which the penalty order was set aside and the case was remanded back to the assessing authority. The Deputy Commissioner (Assessment), Commercial Taxes, Lucknow, however, after remand again passed the penalty order on October 20, 2008 against which an appeal being First Appeal No. 1591 of 2008 was filed by the applicant before the Joint Commissioner (Appeals), Commercial Taxes, Lucknow. In the said appeal, the applicant filed an application for stay of the penalty order, which was decided by the Joint Commissioner (Appeals) by his order dated January 7, 2009 by which the recovery of 70 per cent of the disputed amount of penalty was stayed. Aggrieved from the order of the Joint Commissioner (Appeals) dated January 7, 2009, the applicant filed a second appeal before the Commercial Tax Tribunal, Lucknow, which has been partly allowed by the Commercial Tax Tribunal by order dated January 12, 2009 by which the recovery of the amount awarded as penalty has been stayed subject to the applicant depositing five per cent of the disputed amount of penalty which comes to about Rs. 12,10,62,310. Sri Bharatji Agrawal, learned counsel for the applicant, has submitted that the Commercial Tax Tribunal has clearly erred in law in insisting upon the deposit of five per cent of the disputed amount of penalty as a condition for staying recovery of the penalty amount from the applicant during pendency of the first appeal of the applicant before the Joint Commissioner (Appeals) despite referring to the decisions of this honourable court and the honourable apex court laying down the legal principle that no penalty can be legally imposed under section 15A(1)(o) of the Act when there was no intention to evade payment of tax. Sri Bharatji Agrawal next submitted that no penalty under section 15A(1)(o) of the Act is leviable for the import when the purchase of imported goods is disclosed in the books of account and such purchases were shown at the time of assessment by the applicant, as in view of such disclosure it cannot be said that there was any intention to evade tax merely on the ground that the import was without form XXXI. In support of his contention Sri Bharatji Agrawal has relied upon the following cases : 1. Commissioner of Sales Tax, U.P., Lucknow v. Oriental Carbon Ltd. Ghaziabad reported in [1997] 10 NTN 105. 2. Prag Ice and Oil Mills, Ramghat Road, Aligarh v. Commissioner of Sales Tax, U.P. Lucknow reported in [2004] 25 NTN 897. 3. Wimco Limited, Bareilly v. Commissioner of Sales Tax, U.P. reported in [2003] 23 NTN 576. The ratio discernible from the cases cited on behalf of the applicant is that where a dealer importing goods discloses the purchase of imported goods in the books of account and shows such purchases before the assessing authority at the time of the assessment and the books of account of the dealer are accepted at the time of assessment, no inference can be drawn that there was any attempt to evade tax and no penalty under section 28A of the Act can be imposed merely on the ground that the goods were imported without form XXXI. Sri Sanjeev Shankhdhar learned counsel appearing for the opposite parties submitted that the order passed by the Commercial Tax Tribunal does not suffer from any infirmity. Without disputing the facts of the case, Sri Shankhdhar very fairly submitted that the principle of law laid down in the cases of this court as well as the apex court cited on behalf of the applicant applies with full force in the facts and circumstances of the present case. I have considered the submissions made on behalf of the parties and perused the record. In the present case, the applicant had disclosed the purchase of imported goods in the books of account and shown such purchases before the assessing authority at the time of the assessment and the books of account submitted by the applicant were accepted by the assessing authority, therefore, no inference can be drawn that there was any attempt to evade the tax. Even in the order of the assessing authority imposing penalty no finding has been recorded that the applicant had imported goods without form XXXI with an intention to evade payment of tax. Even in the order of the assessing authority imposing penalty no finding has been recorded that the applicant had imported goods without form XXXI with an intention to evade payment of tax. In view of the aforesaid discussion and the case law cited on behalf of the applicant, I am of the view that the applicant has made out a very strong prima facie case for being granted complete protection against recovery of the penalty amount during the pendency of the first appeal before the Joint Commissioner (Appeals) and the part of the impugned order of the Commercial Tax Tribunal requiring the applicant to deposit five per cent of the amount imposed as penalty by the assessing authority as a condition for stay of recovery of penalty amount during the pendency of the first appeal before the Joint Commissioner (Appeals) is totally unsustainable and liable to be set aside. After the arguments were concluded Sri S. M. K. Chaudhari, learned counsel for the applicant, informed the court that pursuant to the proceedings for recovery of the penalty amount the applicant's Bank Account No. 0600310002566 of HDFC Bank, Lucknow has been attached by an order dated January 21, 2009 of Deputy Commissioner, Division 12, Commercial Tax, Lucknow. A prayer has been made that the account may be released. Thus, for the aforesaid reasons, the revision is allowed. The order dated January 12, 2009 passed by the Commercial Tax Tribunal, Lucknow in Second Appeal No. 3 of 2009 is set aside to the extent requiring the applicant to deposit five per cent of the amount awarded as penalty. The Joint Commissioner (Appeals) III, Commercial Tax, Lucknow is directed to decide the applicant's First Appeal No. 1591 of 2008 expeditiously preferably within a period of six weeks from the date of production of certified copy of this order. It is further provided that till First Appeal No. 1591 of 2008 is decided, the recovery of the amount imposed as penalty upon the applicant by order dated March 28, 2008 for the assessment year 2003-04 shall remain stayed. It is further directed that the applicant's Bank Account No. 0600310002566 of HDFC Bank, Lucknow, attached by an order dated January 21, 2009, shall be released forthwith.